TMI Blog2015 (9) TMI 1604X X X X Extracts X X X X X X X X Extracts X X X X ..... received from the jurisdictional Commissioner and statement dated 7-3-2015 of the applicant, concludes that the applicant has, not only, not filed the requisite ST-3 returns, but also tried to mislead the Bench by enclosing documents purported to be ST-3 returns filed with the Department. The applicant has not fulfilled the condition for approaching the Settlement Commission as stipulated in clause (a) of the first proviso to sub-section (1) of Section 32E of the Central Excise Act, 1944, read with Section 83 of Finance Act, 1994, and also not cooperated with the Settlement Commission in the proceedings - the Bench holds that M/s. Saujannaya Enterprises are not eligible to make an application to the Settlement Commission and consequently without going into the merits of his Service Tax liability, rejects the application for settlement filed by M/s. Saujannaya Enterprises. - Settlement Application No.1059/2014 in File No.C-502/ST/2014-SC(KB) - Final Order No.F-461/ST/2015-SC(KB)-Rej - Dated:- 14-9-2015 - S/Shri Karan K. Sharma, Vice-Chairman And C. Dube, Member For the Appellant: None, for the Assessee. For the Respondent: Shri Brij Pal Ken, Asst. Commissioner, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tivity from 40, Nimtola Ghat Street, Kolkata-700006 to DN-24, Matrix Tower, 10 th Floor, Suite No 1005, Salt Lake City, Sector-V, Kolkata-700 091 and started their business activity without informing the jurisdictional Service Tax Authority and without revealing the change of the registered premises in their ST-2 Certificate and continued collecting Service Tax from their clients. 2.4 Investigations revealed that M/s. Saujannaya Enterprises during the period 2007-08 to 2011-12 the total Service Tax liability of M/s. Saujannaya Enterprises was 3,95,19,174/- as per details in Annexure Cl and C2 to the SCN. Out of this, the applicant had paid a sum of 64,30,666/- towards their Service Tax liability and had thus short-paid Service Tax including Education Cess and Secondary Higher Education Cess amounting to ₹ 3,30,88,508/-. 2.5 During the investigations, the applicant voluntarily deposited ₹ 1,68,48,000/- towards Service Tax liability as detailed below : Sl. No. Cheque No. e-payment challan No. Date Amount ( Rs.) 1 507688 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8,20,000 TOTAL 1,68,48,000 3. On completion of investigations, the SCN was issued whereby the applicant was called upon to show cause to the Commissioner of Service Tax, Kolkata-I Commissionerate, 180, Shanti Pally, Rajdanga Main Road, Rashbehari Connector, Kolkata-700 107 as to why : (i) Service Tax ₹ 3,19,37,464/- Education cess ₹ 7,67,362/- and Secondary Higher Education Cess ₹ 3,83,682/- and totalling ₹ 3,30,88,508/- should not be demanded and recovered from them invoking the extended period of time limit as envisaged under the proviso to the sub-section (1) of Section 73 of Chapter V of the Finance Act, 1994 as amended, (ii) Interest at the appropriate rate under Section 75 of the Finance Act, 1994 should not be charged/ recovered from them for delayed payment of Service Tax including Cess, (iii) Penalty should not be imposed upon under Section 76 of the Finance Act, 1994 for contravention of Section 68 of the Finance Act, 1994, (iv) Penalty should not be imposed upon under Section 78 of the Finance Act, 1994 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inter alia, submitted that the applicant neither stated anything about nor submitted any pertinent document regarding Pure Agent's expenses, as covered under Rule 5(2) of Service Tax (Determination of Value) Rules, 2006, received from their clients during the course of investigation; that in the copies of agreements submitted by the applicant during investigation, there is no mention of such Pure Agent's services and that such a claim of the applicant that part of the amounts considered as taxable value in the SCN was actually Pure Agent's expenses and therefore excludible from taxable value, does not merit consideration. ADG, DGCEI also confirmed the payment of ₹ 1,68,48,000/- during investigation and another sum of ₹ 64,30,666/- paid by the applicant prior to intervention of DGCEI, KZU, Kolkata. 8. In the meanwhile, in his letter dated 4-2-2014 (should be 2015), the Advocate of the applicant prayed for supply of copy of reports submitted by DGCEI and Commissioner, Service Tax, Kolkata, and further prayed that if the above-mentioned reports are not in agreement with the submissions made by the applicant in respect of agreed amount of duty, then the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se to the applicant's letter dated 8-6-2015. 9.3 In his report issued under C. No.V(15)132/ST-Adjn./Commr./13/, dated 5-6-2015, under Section 32F(3) of the Central Excise Act, 1944, the jurisdictional Commissioner has convey red that they agree with the views of DGCEI and have nothing more to add on the comments/ submissions dated 13-2-2015 made by ADGCEI, KZU, Kolkata. 10.1 The matter was fixed for hearing on 10-6-2015. However, a request was received from the applicant to refix the hearing after 30 th June, 2015, since their advocate was out of station. The request of the applicant was acceded to and the next hearing in the matter was fixed for 13-7-2015. Applicant vide letter dated 9-7-2015 informed that since Mr. Anil Kumar Dubey, Proprietor of M/s. Saujannaya Enterprises is sick, the date of hearing may be re-fixed after 20 days. The next date of hearing was fixed on 30 th July, 2015. However, applicant in his undated letter received in this Commission on 28 th July, 2015 intimated that they have been informed that the personal hearing has been fixed on 30-7-2015 and that their advocate, Shri K.K. Biswas, has informed that he will not appear in their case before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the jurisdictional Range Office during the material period. 11.1 Bench has considered the documents on record in this case, as discussed above, and finds that reasonable and sufficient opportunity has been offered, to the applicant to be heard in person. However, the applicant has not availed of the same and has in his letter dated 31-8-2015 intimated that in view of the refusal of their Advocate, Shri K.K. Biswas, to appear in this case before the Settlement Commission and his inability to appear in this case because of heart disease, the Bench has been requested to consider their case. Thus, the applicant himself has requested the Bench to consider his case, without making any request for adjournment or a request for hearing. 11.2 In view of the same, the Bench proceeds to decide this matter on the basis of the material available on record. 11.3 The Bench finds that the applicant has not filed returns as prescribed in clause (a) of the first proviso to Section 32E(1), as made applicable to Service Tax as per Section 83 of the Finance Act, 1994. This clause states that no application shall be made unless the applicant has filed returns showing production, clearance and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
